“Congress ought not to determine a point, of this sort about instituting government.  What is it to Congress how justice is administered?  You have no right to pass the resolution, any more than Parliament has.  How does it appear that no favorable answer is likely to be given to our petitions?"[23]

In spite of this argument, the Congress of that day undertook, by formal resolutions, to indicate the process by which the new governments should be constituted.[24]

If we seek, for our guidance, the principle which entered into this proceeding of the Continental Congress, we shall find it in the idea, that nothing must be left to illegal or informal action, but that all must be done according to rules of constitution and law previously ordained.  Perhaps this principle has never been more distinctly or powerfully enunciated than by Mr. Webster, in his speech against the Dorr Constitution in Rhode Island.  According to him, this principle is a fundamental part of what he calls our American system, requiring that the right of suffrage shall be prescribed by previous law, including its qualifications, the time and place of its exercise, and the manner of its exercise; and then again, that the results are to be certified to the central power by some certain rule, by some known public officers, in some clear and definite form, to the end that two things may be done:  first, that every man entitled to vote may vote; secondly, that his vote may he sent forward and counted, and so he may exercise his part of sovereignty, in common with his fellow-citizens.  Such, according to Mr. Webster, are the minute forms which must be followed, if we would impart to the result the crowning character of law.  And here are other positive words from him on this important point:—­

“We are not to take the will of the people from public meetings, nor from tumultuous assemblies, by which the timid are terrified, the prudent are alarmed, and by which society is disturbed.  These are not American modes of signifying the will of the people, and they never were....

“Is it not obvious enough, that men cannot get together and count themselves, and say they are so many hundreds and so many thousands, and judge of their own qualifications, and call themselves the people, and set up a government? Why, another set of men, forty miles off, on the same day, with the same propriety, with as good qualifications, and in as large numbers, may meet and set up another government....

“When, in the course of human events, it becomes necessary to ascertain the will of the people on a new exigency, or a new state of things, or of opinion, the legislative power provides for that ascertainment by an ordinary act of legislation.

“What do I contend for?  I say that the will of the people must prevail, when it is ascertained; but there must be some legal and authentic mode of ascertaining that will; and then the people may make what government they please....